A federal law that prohibits domestic abusers from possessing guns while under a restraining order is constitutional, the Supreme Court has ruled.
The court’s 8-1 decision in United States v. Rahimi puts to rest a constitutional challenge that threatened to invalidate a key protection for domestic violence victims. All but one of the court’s justices joined to uphold the law, reversing a lower court decision that struck down the provision in February 2023.
In an 18-page opinion, the high court’s near-unanimous majority found that when a person has been found by a court to pose a credible threat to the physical safety of another, they can be temporarily disarmed consistent with the Second Amendment.
Domestic violence prevention advocates breathed a collective sigh of relief when the decision dropped, said Jennifer Waindle, a project director at the Battered Women’s Justice Project.
“We are relieved,” Waindle said. “There’s a direct linkage between firearms access and domestic violence [homicide]. It usually creates a lethal combination. That’s why we’re so grateful that this life-saving law has been upheld.”
Domestic gun violence is one of the leading causes of homicide death for women in America. An analysis published in 2023, which looked at 25 years of data, found that 92 percent of women homicide victims were killed by a man whom they knew. Of that 92 percent, 62 percent were killed by either a former or current intimate partner. The days and weeks after a victim decides to leave a relationship, file a police report, or petition for a restraining order are often the most dangerous time for victims, research has shown. Studies have also found that when a domestic abuser has access to a gun, it increases the likelihood of domestic violence homicide five-fold.
Rahimi is the second of two major gun cases the Supreme Court ruled on this month. The other case, Garland v. Cargill, invalidated a Trump-era ban on bump stocks, aftermarket devices that enable semiautomatic rifles to fire more rapidly.
The ban on guns for people under domestic violence restraining orders is just one of a number of longstanding gun restrictions that have been challenged in a federal judiciary reshaped by former President Donald Trump’s conservative appointees.
Rahimi, the high court’s first significant Second Amendment decision since New York State Rifle and Pistol Association v. Bruen almost exactly two years ago, tested the limits of the court’s “history and tradition” test, crafted in Bruen. In that ruling, the court endorsed for the first time an individual right to carry a firearm in public for self-defense and said that a gun regulation is only constitutional if it has a well-established analog in early American history.
Before Bruen, judges evaluated restrictions on the basis of whether the regulation furthered an important interest, like preventing gun violence, and whether it was appropriately tailored to achieve it. That meant that courts could look back at the history of gun regulations while also considering modern-day factors, research, and technological developments. The ruling prompted a surge of challenges to gun regulations in federal courts, sowed confusion as judges struggled to interpret the decision, and resulted in a flurry of conflicting judgments.
Justice Clarence Thomas, the author of the court’s majority opinion in Bruen, was the sole dissenting justice in Rahimi. The majority bucked Thomas’s absolutist interpretation of the Second Amendment, finding that firearm laws have regulated the misuse of firearms by people who threaten physical harm to others since the nation’s founding. Rahimi is the first significant post-Bruen Second Amendment case to reach the high court, and its decision clarifies — and slightly narrows — how lower courts should apply the history-and-tradition test going forward.
“The reach of the Second Amendment is not limited only to those arms that were in existence at the founding,” Chief Justice John Roberts wrote for the majority. “By that same logic, the Second Amendment permits more than just those regulations identical to ones that could be found in 1791.”
“Holding otherwise would be as mistaken as applying the protections of the right only to muskets and sabers,” he continued.
The clarification provided in Rahimi offers some hope for gun control proponents. The court’s reasoning suggests that other federal gun laws that serve as guardrails for gun ownership — like the bans on felons, those under felony indictment, and those with severe mental illness — will also stand going forward. It could also support the constitutionality of similar laws, like Extreme Risk Protection Order laws, which allow judges to temporarily disarm individuals deemed a threat to themselves or others.
“We’re seeing a recognition, either express or implicit, that the lower courts are having a very difficult time implementing Bruen,” said Eric Ruben, an assistant professor of law at Southern Methodist University’s Dedman School of Law. “The majority of the justices want to refocus the courts not on the precise historical laws, but on the principles that underlie them, and that could insulate more modern-day laws from getting struck down.”
To support its decision in disarming people deemed dangerous, the court pointed to historical surety and “going armed” laws, which it found similarly burdened the Second Amendment. The justices did not agree on every aspect of the case though, leading to five separate concurring opinions that differed on how to implement Bruen’s test.
“There’s going to be more breathing room than some people thought Bruen allowed,” said Maryam Ahranjani, a constitutional law professor at the University of New Mexico School of Law, adding that the concurrences would help with future interpretation of the decision. “But it’s clear that the justices have different opinions on some aspects.”
In the 18th and 19th centuries, surety laws allowed courts to require people who posed a probable threat to public safety to post a bond, or surety. Surety laws could be invoked to prevent violence, including domestic violence, and specifically targeted people suspected of future misbehavior. If the person failed to post the bond, they would be jailed. If they posted the bond and then breached the peace, the bond would be forfeited. Like restraining orders, these laws often included procedural protections, including requiring a complaint, a hearing, and evidence before being imposed.
Prohibitions on “going armed,” meanwhile, involved punishing people who carried weapons in a manner that caused public fear or terror. Violations of these laws could result in the forfeiture of arms.
“Taken together, the surety and going armed laws confirm what common sense suggests: When an individual poses a clear threat of physical violence to another, the threatening individual may be disarmed,” Roberts wrote.
Though the Supreme Court has been shifting right on guns since its 2008 decision in District of Columbia v. Heller, which struck down a handgun ban in Washington, D.C., and recognized an individual right to possess firearms in the home for self-defense, legal observers predicted that the court would refuse to strike down the law in Rahimi, in part out of concern for its ramifications and because the defendant in the case was not particularly sympathetic.
The defendant, a Texas man named Zackey Rahimi, was a suspect in several shootings and a hit-and-run. At the time of his arrest, he was under a civil protective order — as domestic violence restraining orders are formally known — for the alleged assault of his ex-girlfriend. The order expressly prohibited him from having firearms. When police found a rifle and pistol during a search of his home, he was indicted for violating the federal ban.
Rahimi pleaded guilty, but continued to challenge the charges on constitutional grounds. As his appeal was pending, the Supreme Court decided Bruen, forcing the lower courts to reconsider Rahimi’s case using the new history and tradition test. The conservative 5th U.S. Circuit Court of Appeals — which covers Texas, Mississippi, and Louisiana — dismissed his indictment, calling the ban an “outlier that our ancestors would never have accepted.”
The Biden administration appealed the case to the Supreme Court, and during oral arguments in November, Solicitor General Elizabeth Prelogar argued that there was in fact a well-established history of laws disarming people deemed by society to be dangerous.
“The 5th Circuit profoundly erred in reading this Court’s decision in Bruen to prohibit that widespread common-sense response to the deadly threat of armed domestic violence,” Prelogar told the justices. “Bruen recognized that Congress may disarm those who are not law-abiding, responsible citizens.”
In his lone dissent, Thomas wrote that the historical analogs the government and the majority pointed to were not relevantly similar enough to justify the restraining order gun ban. He panned the majority’s decision to uphold the law, saying it could threaten gun rights for the broader public.
“In the interest of ensuring the Government can regulate one subset of society, today’s decision puts at risk the Second Amendment rights of many more,” Thomas wrote.
His dissent was echoed by gun rights organizations that were, before Rahimi, on a winning streak in the nation’s highest court.
“This ruling will disarm others who have never actually committed any domestic violence,” said Erich Pratt, senior vice president of the Gun Owners of America, in a statement. “So for those people to lose their enumerated rights, even for a temporary period of time, is a disgrace. If someone is dangerous, charge them with a real crime, convict them in a court of law, and get them out of society.”
When Congress passed the law in 1994, sponsors said they had designed it to target the most dangerous domestic abusers. It applies only if a court makes an express finding that the person poses a credible threat to an intimate partner’s physical safety or imposes a specific prohibition on the use of physical force, and the disarmament lasts only as long as the order remains in effect. It also requires notice and a hearing. Most states — 48 states and territories — have their own version of the federal law, temporarily disarming people subject to domestic violence protective orders.
Though the Rahimi decision could protect some gun regulations similar to the restraining order gun ban, the court left room for other challenges going forward.
“This is, no doubt, a welcome result for domestic abuse survivors,” Ruben said. “But there are so many open questions, even in the domestic violence context, that are still going to be subject to litigation.”
